Democrats seek to tie Barrett to Trump on Affordable Care Act as confirmation hearings begin

Senate Democrats are seeking to tie Supreme Court nominee Amy Coney Barrett to President Trump’s push to repeal the Affordable Care Act (ACA) on the first day of her confirmation hearings in an effort to dispel any doubt how she will rule on health care if placed on the court.

In interviews Monday morning and their opening statements to the Senate Judiciary Committee, Democrats homed in on health care, and specifically former President Obama’s signature health care law, an issue they view as favorable to their side and one on which they previewed a heavy focus.

The challenge Democrats face is that while they claim Barrett will overturn ObamaCare, the judge has never explicitly said she would do so, though she has dropped big hints about how she’s likely to rule.

Barrett wrote in a 2017 law journal article that Chief Justice John Roberts in National Federation of Independent Business v. Sebelius, which upheld ObamaCare, had “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”

She argued that “had he treated the payment as the statute did — as a penalty — he would have had to invalidate the statute as lying beyond Congress’s commerce power.”

Democrats are seizing on that argument as proof that Barrett won’t hesitate to overturn the Affordable Care Act, and potentially cause millions of Americans to lose access to health care coverage.

“The president has promised to appoint justices who will vote to dismantle that law. As a candidate he criticized the Supreme Court for upholding the law and said, ‘if I win the presidency, my judicial appointments will do the right thing, unlike Bush’s appointee John Roberts on ObamaCare,’” Sen. Dianne Feinstein (Calif.), the ranking Democrat on the Judiciary Committee, said in her opening statement Monday morning.

Feinstein also noted that when Trump formally announced Barrett’s nomination, he said eliminating the ACA would be “a big win for the USA.”

The Supreme Court is scheduled to begin hearing arguments on Nov. 10 in California v. Texas, in which 20 Republican-led states are trying to invalidate the ACA on the basis that Congress erased the penalty portion of the individual mandate in the 2017 Tax Cuts and Jobs Act.

In a press call before the hearing, Sen. Sheldon Whitehouse (D-R.I.), a member of the panel, argued Trump’s strong opposition to Obama’s signature legislative achievement leaves no doubt about how Barrett will rule.

“The Affordable Care Act survived by one vote thanks to Justice Ginsburg being on the court. Judge Barrett has signaled as clearly as she can that she’s going to go the opposite direction from Justice Ginsburg,” Whitehouse said, citing the 2012 Supreme Court decision in National Federation of Independent Business v. Sebelius.

Whitehouse said “the signals of this are everywhere.”

He pointed out the Republican Party platform which states a Republican president will appoint judges who will “reverse the long line of activist decisions,” including Roe v. Wade and the ObamaCare cases.

Whitehouse cited the same Trump quote as Feinstein that his judges will do the “right thing” on ObamaCare, unlike Roberts.

He also noted Barrett’s statement in the 2017 law journal article.

Whitehouse also put forth the argument that while Barrett has written that Roberts pushed the ACA “beyond its plausible meaning,” she has left herself room to reverse the precedent as a member of the high court.

Barrett wrote in a 2013 Texas Law Review article that Supreme Court precedent is “a soft rule” and more akin to a policy than an “inexorable command.” 

“She has said precedent, stare decisis, is not a hard-and-fast rule in the court’s constitutional cases and of course the Affordable Care Act was a constitutional case. So all the signals are there,” Whitehouse said.

Senate Minority Leader Charles Schumer (D-N.Y.) — who said last week that Senate Democrats would focus on “health care, health care, health care” during the hearings — went one step further during a Monday morning interview on MSNBC’s “Morning Joe.”

“Judge Barrett has said she would overturn the ACA, which would rip away protections for people with preexisting conditions. They could end up with no insurance,” he said.

Republicans on the committee pushed back against the Democratic strategy.

Sen. John Cornyn (R-Texas) argued that Democrats can’t know for sure how Barrett might rule on a case and it would be improper of them to solicit a pledge from the nominee about how she would handle a challenge to the ACA and other lawsuits.

“Our Democratic colleagues want you to guarantee a result in a case as a quid pro quo for your confirmation. It’s outrageous,” he said in his opening statement.